Copyright, Corbis & terms of use

Reader Suzanne Smith had her hopes raised by yesterday’s post, “Copyright and the wire photo,” which noted that a very large number of images created by the major wire news services like Associated Press (AP) and United Press International (UPI) are very likely now to be out of copyright.1

It seems that there are two photographs of her mother, published in 1952 and originally created by UPI, that she’d sure like to be able to use freely.

There is, of course, a hitch.

The original images are now owned by, and available through, an outfit called Corbis Images.

And therein lies the rub.

Corbis Images describes itself this way:

Corbis Images is a leading visual media provider for advertising, marketing and media professionals, providing a comprehensive selection of stock photography and illustrations. Corbis Images has exceptional creative, documentary, archival, fine art, current events and entertainment images to help the creative community produce distinctive work for websites, magazines, newspapers, books, television and films. Corbis Images serves its global customer base through its renowned Sales & Service teams and its fast, intuitive website at www.corbisimages.com. Corbis has offices in North America, Europe, Asia and Australia that serve more than 50 countries.2

In other words, as to the photos Suzanne would dearly love to own copies of, Corbis is a stock photo agency. It buys photos and then sell the rights to use those photos to others.

And among the photos that Corbis has bought, and now owns, are all of the pre-1991 photographs created by UPI that used to be in UPI’s New York City archives.3

Corbis would be happy to sell copies of the photos of Susanne’s mom to Suzanne. “Their professional usage fees for those photos is about $1000,” she says. “I can purchase a digital file for my own use for a ‘friends and family fee’ of approximately $150 per photo.”

Ouch. Most of these images, as I said yesterday, are out of copyright, most likely because they either never were copyrighted or the copyright wasn’t renewed as the law would have required it to be before 1964.4 Because of the requirements of copyright law, it’s highly likely that both of these 1952 photos are now in the public domain, meaning that — if Suzanne could get her hands on a copy without having to buy a license — she could use the images any way she’d like.5

So is it even legal for an outfit like Corbis to charge such a large amount of money for a public domain image of someone’s own mother?

Under the law as it stands, it sure is.

Here’s the deal: there’s a difference between the copyright of a thing and the ownership of that thing.6 A work of art created 150 years ago is out of copyright in the United States today. Nobody — not you, not me — has a copyright on that work of art today. But if I own the only copy of it, I can charge you a fee to come into my museum and look at that work of art.

And what Corbis is doing is charging you for coming to its website and looking at (or, in this case, using, reusing, republishing, etc.) the copy of the photographs it owns and displays. Its restrictions on what you can do with the content on its website are part of contract law, not copyright law. These are terms of use issues, not copyright issues.

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it.”7

And boy does Corbis have limits! If you swipe an image from the Corbis site and don’t pay for it, its terms of use give it “the right to bill You (and You hereby agree to pay) ten (10) times the license fee for any unauthorized use, in addition to any other fees, damages and penalties Corbis may be entitled to under this Agreement, any applicable Corbis Content License Agreement and applicable law.”8

So Suzanne has no choice but to pony up to Corbis, right?

Um… maybe not.

Because Corbis can only control those images you access through its website or buy directly from its sales department.

Assuming that we’re right and these images are out of copyright, then if somebody else legally has copies of them from another source, Corbis has no right whatsoever to say what that other owner can do about granting access to its copies. For example, the Library of Congress has some copies of pre-1991 UPI photos in its collections and, it notes, “CORBIS does not control the copying of UPI images housed in the Library of Congress.”9

Let’s go back to our work of art example. Say the work of art is a print from a woodcut and the artist made two copies and then destroyed the woodcut master. Now 150 years later, I own one of the prints and you own the other. I can charge people to come look at my copy. But you can do anything you want with your copy. You can let people look at it, photograph it, sketch it, copy it. And there isn’t a thing I can do about it.

The same is true here. If Suzanne is right that the photos of her mom were published, then

• if they’re out of copyright, and
• she can find when and where they were published, and
• she can get access to a copy of whatever publication it was that published them, and
• she can get a good enough image for her purposes from that publication, then

there’s nothing anyone else can say about it.

And she can legally tell Corbis to take its “friends and family” $150-per-image fee and go and … um… pound salt.